[Criminal Appeal No. 2030 of 2012]
R. BANUMATHI, J.
1. This appeal arises out of the judgment of High Court of Punjab and Haryana at Chandigarh dated 28.11.2011 passed in Crl. Appeal No. 716- DB/2002, in and by which the High Court confirmed the conviction of the appellant under Section 302 IPC and also the sentence of life imprisonment imposed on the appellant.
2. Briefly stated, the case of the prosecution is that, marriage of Smt. Anita (deceased) with Dharampal was solemnized in the year 1997. Appellant-Prempal is the younger brother of Dharampal. On 24.10.2001 at 3.00 p.m. Anita was all alone at her matrimonial house located at village Budana. Her husband Dharampal working as a teacher in village Milakpur had not returned home from the school; her mother-in-law had gone to her parents house. When Anita was all alone, the appellant-Prempal grappled with Anita and pushed her down and alleged to have set her on fire at about 3.00 p.m. along with Jai Singh, father of the appellant. Anita was brought to Shanti Hospital, Narnaund by her father-in-law Jai Singh with 95% burn injuries on her body on the same day at 4.00 p.m.
On receipt of the information from the Medical Officer and after obtaining opinion of the Medical Officer that Anita was in a fit condition to make the statement, Assistant Sub Inspector of Police (PW 8) requested PW-4, Tehsildar to record the statement of Anita. Tehsildar-cum-Executive Magistrate (PW 4) reached the hospital and again sought opinion of the Medical Officer (Ext. P13) who opined that Anita was fit to make a statement. Tehsildar (PW4) recorded the statement of Anita (Ext. P11) in which deceased Anita stated that her brother-in-law Prempal grappled with her and pushed her aside and poured kerosene upon her and set her ablaze. Based on her statement, FIR was registered under Section 307 IPC against the appellant. PW-8 had taken up the investigation and prepared the Rough Site Map of the spot and seized material objects from the scene of the crime.
3. On 24.10.2001 at about 11.45 P.M., Anita succumbed to injuries. On receipt of intimation about the death of Anita, the investigating officer went to the hospital and held the inquest proceedings and prepared the Inquest Report. PW-1, Dr. J.P. Malik conducted autopsy on the body of deceased Anita and issued the Post Mortem Certificate. The investigating officer recorded the statement of Dhan Singh (PW 7) and Chhotu Ram father of Anita. The case registered under Section 307 IPC was altered into Section 302 IPC and after completion of investigation, charge sheet was filed against the appellant and Jai Singh – father-in-law of deceased.
4. To bring home the guilt of accused, prosecution examined eight witnesses and exhibited number of documents and material objects. After conclusion of the trial, the trial court convicted the appellant under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and also to pay a fine of Rs. 5,000/- with default clause. The trial court also convicted the appellant under Section 354 IPC and sentenced him to undergo rigorous imprisonment for a period of two years and both the sentences were ordered to run concurrently. The co-accused Jai Singh was acquitted of the charge. In the appeal preferred by the appellant, the High Court confirmed the conviction of the appellant under Section 302 IPC and the sentence imposed on him and acquitted him under Section 354 IPC. Being aggrieved, the appellant has preferred this appeal.
5. Learned counsel for the appellant contended that Anita sustained 95% burns all over the body and there were deep burn injuries in fingers of the hand and feet of Anita and she died shortly after recording of her dying declaration and it might not have been possible for her to make a statement and trial court and the High Court erred in relying upon the dying declaration. The learned counsel for the appellant contended that though PW-4, Tehsildar got the certificate regarding fitness of the deceased to make the statement, yet no specific certificate was obtained by him that the deceased remained conscious throughout while recording her statement. It was submitted that the courts did not properly appreciate the defence version put forth by the accused that Anita committed suicide.
6. Per contra, learned counsel for the respondent-State submitted that dying declaration of Anita is true and voluntary and not a result of tutoring and relying upon the same, trial court and the High Court have rightly based the conviction and the same warrants no interference.
7. We have given our due consideration to the respective contentions of the learned counsel for the parties. On receipt of intimation at 8.20 P.M., PW-8 sought the opinion of the Medical Officer whether Anita was fit to make the statement or not and PW-3, Doctor opined that Anita was fit to make the statement. On receipt of the request from PW-8, ASI, PW-4, Tehsildar reached the hospital at 9.15 P.M. and PW- 4, Tehsildar again obtained the opinion of PW-3, Doctor and PW-3, Dr. Suresh opined that Anita was fit to make the statement and only thereafter PW-4, Tehsildar recorded her statement which is Ext. P11. In his evidence, PW-3 stated that Anita remained conscious and was in a fit condition when PW-4, Tehsildar recorded the statement, he (PW-3) remained throughout and he also endorsed Ext. P11 statement.
8. In his cross-examination, PW-3 stated that Anita sustained 95% burns and chances cannot be ruled out that a person can be unconscious having 95% burns. Much reliance was placed upon the above answers elicited from the doctor – PW-3 to assail the reliability of Ext. P11 dying declaration. The answers elicited from PW-3 during the cross- examination is only an opinion. PW-3 issued Exts. P12 and P13 certificates certifying that Anita was in a fit condition to give statement. Opinion evidence elicited during the cross-examination of PW- 3, Doctor cannot prevail upon his assertion in Exts. P12 and P13 as to the fit mental condition of Anita to give statement. It is also to be noted that after sustaining injuries, victim was alive till midnight and that Anita died at 11.45 P.M. on 24.10.2001.
9. Anita sustained burn injuries at 3.00 P.M. and she was admitted in the hospital at 4.00 P.M. Statement of Anita was recorded by PW-4, Tehsildar at 9.15 P.M. to 9.25 P.M. During the cross-examination of PW-3, it was elicited from him that about eight to ten persons who are relatives of Anita came to the hospital. On behalf of the appellant it was contended that in the long gap of time, between Anita’s admission in the hospital and recording of her statement by PW-4, Tehsildar, number of relatives of Anita assembled and therefore there is every possibility that Anita must have been tutored to falsely implicate the appellant.
10. We do not find any substance in the submission that Anita was surrounded by her family members and that she was tutored to falsely implicate Prempal. May be after Anita was admitted in the hospital, there were some family members to attend to her; but there is no material suggesting that they were talking to Anita or that Anita was tutored. PW-3, Doctor and PW-4, Tehsildar have categorically denied the suggestion that Anita was tutored by her father Chhotu or her relatives. Deceased and her husband Dharampal were living separately. While so, Anita had no reason to falsely implicate her brother-in-law.
11. When reliance is placed upon dying declaration, the court must be satisfied that the dying declaration is true, voluntary and not as a result of either tutoring or prompting or a product of imagination. The Court must be further satisfied that the deceased was in a fit state of mind. In State of Uttar Pradesh vs. Ram Sagar Yadav And Ors. AIR 1985 SC 416 = (1985) 1 SCC 552, this Court held that if the Court is satisfied that the dying declaration is true and voluntary, it can base conviction on it without corroboration. In this context, the observations made in para (13) of the judgment are relevant to be noted:-
“It is well settled that, as a matter of law, a dying declaration can be acted upon without corroboration. (See Khushal Rao vs. State of Bombay, 1958 SCR 552; Harbans Singh vs. State of Punjab, 1962 Supp.1 SCR 104; Gopalsingh vs. State of M.P. (1972) 3 SCC 268). There is not even a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated. The primary effort of the court has to be to find out whether the dying declaration is true. If it is, no question of corroboration arises. It is only if the circumstances surrounding the dying declaration are not clear or convincing that the court may, for its assurance, look for corroboration to the dying declaration……………”
12. In Bapu vs. State of Maharashtra (2007) 2 SCC (Crl.) 545 = (2006) 12 SCC 73, this Court in paras (14) and (15) observed as under:-
14. In Ravi v. State of T.N. [(2004) 10 SCC 776] the Supreme Court observed that : (SCC p.777, para 3) “[I]f the truthfulness… of the dying declaration cannot be doubted, the same alone can form the basis of conviction of an accused and the same does not require any corroboration, whatsoever, in law.”
15. In Muthu Kutty v. State [ (2005) 9 SCC 113] vide para 15 the Supreme Court observed as under : (SCC p. 120-121)
“15. Though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the court also insists that the dying declaration should be of such a nature as to inspire full confidence of the court in its correctness. The court has to be on guard that the statement of the deceased was not as a result of either tutoring, or prompting or a product of imagination.
The court must be further satisfied that the deceased was in a fit state of mind after a clear opportunity to observe and identify the assailant. Once the court is satisfied that the declaration was true and voluntary, undoubtedly, it can base its conviction without any further corroboration. It cannot be laid down as an absolute rule of law that the dying declaration cannot form the sole basis of conviction unless it is corroborated. The rule requiring corroboration is merely a rule of prudence. This Court has laid down in several judgments the principles governing dying declaration, which could be summed up as under as indicated in Paniben v. State of Gujarat [(1992) 2 SCC 474]: (SCC pp. 480-81, paras 18-19) (emphasis supplied)
(i) There is neither rule of law nor of prudence that dying declaration cannot be acted upon without corroboration. (See Munnu Raja v. State of M.P)[(1976) 3 SCC 104].
(ii) If the Court is satisfied that the dying declaration is true and voluntary it can base conviction on it, without corroboration. (See State of U.P. v. Ram Sagar Yadav [(1985) 1 SCC 552] and Ramawati Devi v. State of Bihar [(1983) 1 SCC 211].
(iii) The court has to scrutinize the dying declaration carefully and must ensure that the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit state to make the declaration. (See K. Ramachandra Reddy v. Public Prosecutor [(1976) 3 SCC 618].)
(iv) Where dying declaration is suspicious, it should not be acted upon without corroborative evidence. (See Rasheed Beg v. State of M.P [(1974) 4 SCC 264]).
(v) Where the deceased was unconscious and could never make any dying declaration the evidence with regard to it is to be rejected. (See Kake Singh v. State of M.P [(1981) Supp. SCC 25]).
(vi) A dying declaration which suffers from infirmity cannot form the basis of conviction. (See Ram Manorath v. State of U.P [(1981) 2 SCC 654]).
(vii) Merely because a dying declaration does not contain the details as to the occurrence, it is not to be rejected. (See State of Maharashtra v. Krishnamurti Laxmipati Naidu[ (1980) Supp. SCC 455]).
(viii) Equally, merely because it is a brief statement, it is not to be discarded. On the contrary, the shortness of the statement itself guarantees truth. (See Surajdeo Ojha v. State of Bihar [(1980) Supp. SCC 769]).
(ix) Normally the court in order to satisfy whether deceased was in a fit mental condition to make the dying declaration look up to the medical opinion. But where the eyewitness said that the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. (See Nanhau Ram V. State of M.P. [(1988) Supp. SCC 152]).
(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration cannot be acted upon. (See State of U.P. v. Madan Mohan [(1989) 3 SCC 390]).
(xi) Where there are more than one statement in the nature of dying declaration, one first in point of time must be preferred. Of course, if the plurality of dying declaration could be held to be trustworthy and reliable, it has to be accepted. (See Mohanlal Gangaram Gehani v. State of Maharashtra [(1982) 1 SCC 700]). ”
13. Deceased Anita had suffered 95% burn injuries; yet her statement before PW-4, Tehsildar was clear and cogent. The trial court and the High Court examined the reliability of the dying declaration and recorded concurrent findings of fact that Ext. P11 dying declaration is reliable and inspires confidence of the court. We find no perversity in such findings.
14. PW-7, Dhan Singh is the uncle of deceased Anita. In his evidence PW-7 stated that when they reached the hospital, the deceased told him and her father Chhotu Ram that her brother-in-law Prempal had scuffled with her and pushed her down and in the meanwhile, Jai Singh came and asked Prempal to bring kerosene and set her on fire and Prempal brought kerosene and poured on her and Jai Singh set her on fire and thereafter Jai Singh and Prempal tried to extinguish the fire.
It was submitted that during cross-examination of PW-7, he was also confronted with reference to his statement recorded during investigation under Section 161 Cr.P.C. Learned counsel for the appellant contended that there are two conflicting statements by the deceased and in one statement before PW-4, Tehsildar, Anita named only the appellant whereas in the other statement before PW-7, she not only named two accused persons but also categorically defined the roles individually to the respective accused persons and this contradiction raises serious doubts about the incident and the veracity of the statement by Anita and this aspect was not properly appreciated by the Trial Court and the High Court.
15. Countering the above arguments, the learned counsel for the respondent-State took us through the evidence of PW-7 and also the judgment of the trial court and submitted that in his statement recorded during inquest PW-7 had stated that Anita told him that appellant was responsible for her burns and the courts rightly held that there is no inconsistency between dying declaration and the statement of PW-7.
16. We have gone through the evidence of PW-7 and the judgment of the trial court. So far as overt act of the appellant, pouring kerosene on the deceased, we find no material inconsistency between the evidence of PW- 7 and Ext. P11 dying declaration. Referring to the statement of PW-7 recorded during inquest, the trial court recorded factual finding that in his anxiety, PW-7, Dhan Singh tried to rope in Jai Singh also and that in his earlier statement recorded during inquest PW-7, Dhan Singh did not implicate Jai Singh and on those findings, trial court acquitted Jai Singh. In the light of such factual finding recorded by the trial court, we find no merit in the submission of the learned counsel for the appellant that there were two contradictory version of the deceased.
17. The defence version is that Anita committed suicide as she was frustrated because she could not conceive a child. The appellant-Prempal in his statement under Section 313 Cr.P.C. stated that on 24.10.2001 he had gone to Narnaund for purchase of domestic articles and returned home at 5.00 p.m. and only then he came to know that his sister-in-law Anita had set herself on fire and his father Jai Singh had taken her to Shanti Hospital for treatment and that deceased Anita used to remain depressed as she did not conceive the child and therefore she committed suicide. The appellant placed reliance upon the statement of his father Jai Singh recorded under Section 313 Cr.P.C. and also the burn injuries sustained by Jai Singh. The fact that Jai Singh sustained burn injuries, does not lead to the conclusion that it was a suicide.
18. In burn injury cases, two possible hypothesis arise in the judicial mind – was it suicide or was it homicide. In cases where the dying declaration projected by the prosecution gets credence, the alternative hypothesis of suicide has to be justifiably eliminated. In the present case, had it been a suicide, Anita who was at the point of death had no reason to falsely implicate her brother-in-law Prempal. We do not find any substance in the defence version of suicide theory.
19. A perusal of various judgments of this Court, some of which we have referred to above, shows that if a dying declaration is found to be reliable, then there is no need for corroboration by any witness and conviction can be sustained on that basis alone.
20. In the present case evidence of Tehsildar, the Doctor and other witnesses is cogent and consistent that the deceased was conscious and in a fit state of mind to give dying declaration and courts rightly based the conviction upon the same. When the trial court as well as the High Court have appreciated the entire evidence in its right perspective, we see no reason to interfere and the appeal fails. In the result, the appeal is dismissed.
………………..J. (T.S. Thakur)
………………..J. (R. Banumathi)
New Delhi;
September 3, 2014
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